Opposition Brief — Oklahoma v. New Mexico

ome Court, U.S,

FILED

vn 25 war

PANIOL, Jf,

7 few

No. 109, Original

—

IN THE

Supreme Court of the United States

October Term, 1986

STATE OF ORLAHOMA and

STATE OF TEXAS,

Plaintitts,

v,

STATE OF NEW MEXICO,

Defendant.

NEW MEXICO'S BRIEF IN OPPOSITION TO

THE OKLAHOMA AND TEXAS MOTION

FOR LEAVE TO FILE COMPLAINT

HAL STRATTON

trrorney General of New Merico

JAMES O, BROWNING

Deputy Attorney General

CHRISTOPHER D, COPPIN

Assistant Attorney General

PETER THOMAS WHITE *

ERIC RK, BIGGS

Special Assistant Attorneys General

N.M, Interstate Stream Commission

Bataan Memorial Building

Santa Fe, New Mexico 87503

Attorneys for New Mexico

*Counsel of Record

June 25, 1987

VEO AMA CHIN TI CO SANTA £t MEW WE BCH

TABLE OF CONTENTS

Page

Pe EEE Seccbcccccccccecccccceces ii

SUMMARY OF ARGUMENT .....066 ccc cccccceeceues 2

STATEMENT OF FACTS *seetececaeceoecettareaeetetiaeatteteeeanea 3

1, Conservation Storage Capacity in Excess of

200,000 Acre-Feet Is Authorized by

the Compact Stesrseceecresceaceeeeaaaeceeeeaeeeeeaenea 4

2. The Ute Reservoir Sediment Control Pool

Is Not Conservation Storage Under the

GEIS ccccccccseccccccess #etepeeeteaaeeaeeaegs 5

3, Other Reservoirs Below Conchas Dam Pose

No Violation of the Compact 66.66.6666 66 600005 4

ARGUMENT *>eeeane #s+eccrseeeareaeceaceaetereeaeaeaaeeaeeeeeaeaeaeenagn 10

tT chbbbecé ch edeheecsebeneses 66600es's 10

DT Hiecs ebaddadesescoctoceiodscveeeée Al

DTT ¢n0bbbeasoecescoccecesos yadasebeoss BI

RPUUMIEIEG cocccccccccocseccccccess TETTTTTiTT Cl

TABLE OF AUTHORITIES

CASES: Paye

Alabama v, Texas,

A Py it.. Peer

Arizona v, California,

283 U.S, 429 (19ST) occas * ee ee 9000eesesenanue

Arizona v, New Mexico,

GBD Ue THO CEPTED cccccécccsecesssessaeee

Iilinois v, City of Milwaukee,

406 U.S, 9161972) 0000000006s60000000nnne 10

Massachusetts v, Missouri,

308 U.S, 1 (1999) 900000000000000006800ne

CONSTITUTION AND STATUTES:

United States Constitution, article Wo... ccc cca 2

20 UGC. 6 IZSMEMISSR) occcccccccccceceenenseennnen

Canadian River Compact,

66 Stat, 74(1952) wecccscccccccccsccccccres POON

FRG TE occcccccccseccsccceseeen socccsseee P

AMO TY coccccccccccccccees covccccccce GG

AMNGO VTE ccccccccccccsscesccesseuseeenane

Supreme Court Rules

SUED DS scccscccccecees PYTTTTTT TT) |

i

No. 109, Original

IN THE

Supreme Court of the United States

October Term, 1986

STATE OF OKLAHOMA and

STATE OF TEXAS,

Plaintiffs,

v.

STATE OF NEW MEXICO,

Defendant.

NEW MEXICO’S BRIEF IN OPPOSITION TO

THE OKLAHOMA AND TEXAS MOTION

FOR LEAVE TO FILE COMPLAINT

On April 16, 1987, the State of New Mexico was served

copies of the Motion for Leave to File Complaint, Complaint,

and Brief in Support of Motion filed by the State of Oklahoma

and the State of Texas. New Mexico submits this brief in

opposition to the motion pursuant to Supreme Court Rule 9.5.

New Mexico received a ten-day extension of time to file a

response, so that this brief is timely.

2

SUMMARY OF ARGUMENT

New Mexico opposes the motion because there is no actual

controversy between the states to invoke the Court’s jurisdiction

under Article III of the Constitution and 28 U.S.C. § 1251(a)(1)

(1982). There is no actual or threatened impairment of the

rights of Oklahoma and Texas, but merely the assumed,

possible invasion of such rights. The Supreme Court should not

issue a declaratory decree on technical questions, such as the

meaning of terms in the Canadian River Compact, 66 Stat. 74

(1952). New Mexico has not violated the Compact; conse-

quently, there is no controversy between the states that needs

resolution, and litigation is unnecessary.

Oklahoma and Texas assert that New Mexico’s violation of

the Canadian River Compact has caused direct and irreparable

harm. They further state that the violation has impaired sub-

stantially the yield of Lake Meredith in Texas and its ability

to supply drinking water and other municipal and industrial

requirements. Brief in Support of the Oklahoma and Texas

Motion for Leave to File Complaint (Oklahoma-Texas Brief)

at 23-24, 29-31.!

New Mexicce could not have violated the Compact, under

any interpretation of the Compact, before the enlargement of

Ute Reservoir in 1984. After the enlargement, there could have

1 Oklahoma and Texas allege that New Mexico's “violation” of the

Compact contributed to a reduction in the flow of the Canadian River

into Oklahoma from 591 to 84 cubic feet per second. Given that New

Mexico had never stored in reservoirs in the drainage basin below

Conchas Dam more than 183,300 acre-feet of water from ail sources as

of the date Oklahoma and Texas filed their complaint and motion, the

allegation is without foundation because the Compact could not have

been violated.

3

been a violation of the Compact only if the New Mexico Inter-

state Stream Commission, the state agency authorized to

construct and manage the dam, had ignored the criteria which

that ageney had adopted for the dam’s operation so as to ensure

compliance with the Compact. It did not do so, as shown below.

STATEMENT OF FACTS

Oklahoma and Texas assert that New Mexico has violated

the Canadian River Compact by: (1) having storage capacity

in excess of 200,000 acre-feet available in the drainage basin

of the Canadian River below Conchas Dam in New Mexico,

Oklahoma-Texas Brief at 27; (2) having a sediment control

pool at Ute Reservoir that is not dedicated solely to sediment

control, Oklahoma-Texas Brief at 26-27; and (3) threatening

to build and use additional reservoirs on the Canadian River,

Oklahoma-Texas Brief at 28.

The following facts are salient. The New Mexico Legislature

authorized the construction of Ute Dam and Reservoir in 1957.

The initial stage was completed in 1963 with a reservoir ca-

pacity of 109,600 acre-feet. In 1984 the reservoir was enlarged

to a total capacity of 272,800 acre-feet. The current capacity to

store water is estimated to be 246,600 acre-feet. The remainder,

at least 26,200 acre-feet, is filled by sediment.2 Currently,

New Mexico is storing in Ute Reservoir an estimated 180,900

acre-feet of water originating above Conchas Dam. The maxi-

mum amount of water originating in the Canadian River basin

below Conchas Dam stored in all reservoirs below the dam in

New Mexico is estimated to have been 121,400 acre-feet,

occurring on March 6, 1987. The amounts of water actually

stored in Ute Reservoir since 1963 are set forth in Appendix A.

2 See infra note 8.

4

1. Conservation Storage Capacity in Excess of

200,000 Acre-Feet Is Authorized by the Compact

Oklahoma and Texas argue that New Mexico is in violation

of the Compact by having storage capacity in excess of 200,000

acre-feet available for conservation storage. Two Compact pro-

visions specifically allow New Mexico to maintain conservation

storage capacity in excess of 200,000 acre-feet.

Article 1V(a) of the Compact? allows the use of conservation

storage capacity in excess of 200,000 acre-feet in Ute Reservoir

for the storage of water originating above Conchas Dam. On

May 16, 1987, with an estimated 180,900 acre-feet of water

that had spilled or been released from Conchas Dam in storage

in Ute Reservoir, the inflow of water originating above and

below Conchas Dam resulted in an uncontrolled spill from Ute

Reservoir, even though the outlet gates had been opened fully

for five weeks. The total amount of water originating in the

Canadian River basin below Conchas Dam stored in Ute Reser-

voir has been estimated to be only about 65,700 acre-feet on

May 16, 1987. Appendix B is a chart setting out the content of

Ute Reservoir on relevant dates. A schematic representation

of Ute Reservoir content as it relates to the operating criteria

for the reservoir is attached as Appendix C.

Article VII of the Compact* clearly contemplates that New

Mexico is entitled to have more than 200,000 acre-feet of

3 Article 1V(a) states:

“New Mexico shall have free and unrestricted use of all waters origi-

nating in the drainage basin of Canadian River above Conchas Dam.”

4 article VII states:

“The commission may permit New Mexico to impound more water than

the amount set forth in Article [V and may permit Texas to impound

more water than the amount set forth in Article V; provided, that no

state shall thereby be deprived of water needed for beneficial use;

provided further that each such permission shall be for a limited period

(Cont. on p. 5)

conservation storage capacity for waters originating below

Conchas Dam to take advantage of Canadian River Commission

permission to impound more water than the amount set forth

in Article IV. Article VII would be meaningless if New Mexico

is not allowed to have storage capacity available to take

advantage of Article VII's provisions.

2. The Ute Reservoir Sediment Control Pool Is

Not Conservation Storage Under the Compact

Oklahoma and Texas contend because New Mexico allows

recreation on the pool of water at Ute Reservoir dedicated to

sediment control, that pool of water is “conservation storage”

for the reason it is not used solely for sediment control.

Oklahoma-Texas Brief at 26-27.5

Oklahoma and Texas fail to consider how New Mexico has

addressed sediment control at Ute Reservoir. It is important to

understand the operating criteria which the Interstate Stream

Commission first adopted for the operation of Ute Reservoir

in 1984. These criteria were updated in 1985. The 1984 and

1985 criteria were furnished to the Canadian River Commission.

In designing works such as the Ute Dam and Reservoir, the

usual first step is to determine the practicable storage capacity

at the site selected. In the course of design development, the

4 (Cont. from p. 4)

not exceeding twelve (12) months; and provided further that no state or

user of water within any state shall thereby acquire any right to the

continued use of any such quantity of water so permitted to be

impounded.”

> The fact that Ute Reservoir is storing at least an estimated 180,900

acre-feet of water originating above Conchas Dam makes the Oklahoma

and Texas argument on this point moot. See page 4 supra. Thaymerits of

the argument by Oklahoma and Texas are addressed here.

6

storage space is allocated to various functions. Dead storage

capacity is that capacity below the outlet works or the pumping

plants to be used to take water from the reservoir. Inactive

storage capacity is that capacity established by operating

criteria below which no water will be released or withdrawn

from storage. The average annual sediment inflow is estimated

and a capacity adequate for 50 to 100 years of sediment inflow

usually is allocated for sediment control. A part of the sediment

control capacity is designated “inactive,” creating a minimum

pool of water to enhance sediment retention. This improves

downstream channel conditions and provides reasonably silt-free

water for domestic, municipal and industrial uses. The latter

purpose is particularly important where water is to be with-

drawn from the reservoir for those uses by pumping plants, as

is the case at Ute Reservoir.©

Operating criteria usually are formulated to control storage

space allocation. The rules formulated for Ute Reservoir in

1984 and revised in 1985 ensure against any violation of

Article 1V(b) of the Canadian River Compact.’ In 1984, the

total capacity of Ute Reservoir was 272,800 acre-feet. The

operating criteria for Ute Reservoir establish a sediment control

pool at elevation 3741.6 feet above sea level to desilt water for

domestic, municipal, irrigation and industrial uses. In 1984,

the reservoir’s capacity to store water above the sediment

control pool at elevation 3741.6 was 210,600 acre-feet. Under

6 Space also may be allocated to flood control based on projected flood

flows and the downstream need for flood protection. No space in the

Ute Reservoir is allocated for flood control.

7 article IV(b) states:

“New Mexico shall have free and unrestricted use of all waters originating

in the drainage basin of Canadian River in New Mexico below Conchas

Dam, provided that the amount of conservation storage in New Mexico

available for impounding these waters which originate in the drainage

basin of Canadian River below Conchas Dam shall be limited to an

aggregate of two hundred thousand (200,000) acre-feet.”

the Ute Reservoir operating criteria the maximum conservation

storage capacity in Ute Reservoir after enlargement was and is

never more than 197,700 acre-feet. This results in a difference

of 12,900 acre-feet from the reservoir’s total capacity to store

water above the sediment control pool. Based upon the average

inflow for the 1939-83 period, the 12,900 acre-feet of space

will be filled by sediment deposition by about 1995. It would

have been unreasonable for New Mexico not to include capacity

for future sediment deposition in Ute Reservoir up to the

practicable storage limitation of the site.

The capacity of Ute Reservoir below elevation 3741.6 is

49,900 acre-feet. Of that capacity, an estimated 13,900 acre-

feet was occupied by sediment at the end of 1983, leaving

a sediment control pool of 36,000 acre-feet at that time.®

The volume of the sediment control pool is not accountable

as a part of conservation storage because it is not available

under the operating criteria for release for “domestic, munici-

pal, irrigation and industrial uses,” or any other uses. Compact

Article II(d).9 Storage for sediment control is expressly ex-

cluded from the definition of conservation storage. /d. Because

recreation is allowed on the sediment control pool, Oklahoma

and Texas contend that the capacity below that level must be

accounted as conservation storage. New Mexico could meet

this contention by simply raising the outlet works and installing

8 Sediment in Ute Reservoir above elevation 3741.6 occupied 12,300

acre-feet of the capacity of the reservoir at the end of 1983. Total

sediment in the reservoir at that time occupied 26,200 acre-feet of the

capacity.

9 Article II(d) states:

“The term ‘conservation storage’ means that portion of the capacity

of reservoirs available for the storage of water for subsequent release

for domestic, municipal, irrigation and industrial uses, or any of them,

and it excludes any portion of the capacity of reservoirs allocated solely

to flood control, power production and sediment control, or any of them.”

any future pumping plant at a level above the minimum or

sediment control pool, But their contention is without merit

given the terms of the Compact and invites no subterfuge.

Because the purpose of storage below elevation 3741.6 is for

sediment control, and the water stored is not available for

release, recreational and fish and wildlife uses of water below

that elevation do not change sediment control storage into

conservation storage. The fallacy of the Oklahoma and Texas

position is made clear by comparing incidental recreational use

of a minimum power pool or a flood control pool. Such use

clearly would not change the character of that storage. Because

“conservation storage” can be limited by operating criteria,

New Mexico is in compliance with the Compact unless and until

those criteria are ignored.

3. Other Reservoirs Below Conchas Dam

Pose No Violation of the Compact

There are eleven reservoirs, other than Ute Reservoir, within

the drainage basin of the Canadian River below Conchas Dam

with capacities greater than 100 acre-feet. Eight reservoirs with

a total capacity of approximately 2,300 acre-feet make water

available for release for irrigation use. Three reservoirs are

maintained to their maximum controlled capacity of approxi-

mately 4,500 acre-feet for recreation, fish and wildlife, and

stock watering purposes.

Beceuse the capacities of the first eight reservoirs noted

above constitute “conservation storage” as defined by the

Compact, New Mexico's operating criteria provide that no

more than 197,700 (200,000 — 2,300) acre-feet of the capacity

of Ute Reservoir may be allocated to conservation storage.

Factually, no portion of the capacities of the three remaining

reservoirs is available for the storage of water for subsequent

release for domestic, municipal, irrigation and industrial uses.

9

On the other hand, it cannot be said that any portion of the

capacity of these three reservoirs is allocated solely to flood

control, power production, or sediment control, These facts

lead to the conclusion that there is a hiatus in the Compact

definition of “conservation storage” that results in no part of

the capacity of the three reservoirs falling within the definition

of conservation storage and no part of the capacity of those

reservoirs that is specifically excluded from that definition,

Because the present magnitude of the storage capacity involved

would be so small after deducting the volumes of sediment

deposited, whether the remaining capacity should be accounted

as conservation storage is of little moment.

Oklahoma and Texas assert that New Mexico is Uireatening

to build additional reservoirs with resultant harm to Texas and

Oklahoma, Oklahoma-Texas Brief at 28. This allegation is based

on a 1986 Notice of Intention to Make Formal Application for

Permit filed by the Interstate Stream Commission for waters of

the Canadian River below Conchas Dam. The Notice of Inten-

tion cannot be construed to indicate an intention to develop

conservation storage for waters originating below Conchas Dam

in excess of the 200,000 acre-feet authorized by the Compact.

With average water supply, by about 1995, sediment deposition

will take up so much of the storage capacity of Ute Reservoir

that it would be physically impossible for New Mexico to have

more than 197,700 acre-feet of storage capacity above the

minimum or sediment control pool, The notice does reserve to

the Interstate Stream Commission the right to develop addi-

tional conservation storage, as necessary, to offset sediment

deposition. New Mexico currently has no plans to proceed

with development under the notice, or funds to develop such

plans.

10

ARGUMENT

The original jurisdiction of the Supreme Court should be

invoked sparingly and the Court is obligated to exercise it only

in appropriate cases. A state must have a serious claim necessary

for its protection. Arizona v, New Mexico, 425 U.S, 794,

796-97 (1976); Illinois v. City of Milwaukee, 406 U.S, 91, 93

(1972). See also Massachusetts v, Missouri, 308 U.S. 1, 15

(1939), The Court cannot issue declaratory decrees. An original

action may be dismissed if it is based not on any “actual or

threatened impairment” of a right but upon “assumed potential

invasions” of a right. If there is no allegation of definite physi-

cal acts which are interfering or will interfere with a state's

right to make further appropriations of water, the complaint

should be dismissed without prejudice. Arizona v. California,

283 U.S. 423, 462-64 (1931). De minimis non curat lex.

New Mexico has never stored more than 200,000 acre-feet of

water originating in the Canadian River basin below Conchas

Dam. New Mexico has adopted operating criteria for Ute Reser-

voir which prohibit its “conservation storage” of more than

197,700 acre-feet for water originating below Conchas Dam.

In fact, New Mexico is now storing at ‘rast 180,900 acre-feet

of water originating above Conchas Uam at Ute Reservoir.

Given these facts, the issues raised by Oklahoma and Texas are

without merit. See Alabama v. Texas, 347 U.S. 272 (1954).

CONCLUSION

For all the above reasons, New Mexico requests the Court

either to deny without prejudice the Oklahoma and Texas

Motion for Leave to File Complaint or to order Oklahoma

and Texas to make a more definite statement in their com-

plaint on the nature and extent of any alleged past, present

or future injury to their rights under the Canadian River

Compact.

June 25, 1987

Respectfully submitted,

HAL STRATTON

Attorney General of New Mexico

JAMES O. BROWNING

Deputy Attorney General

CHRISTOPHER D. COPPIN

Assisiant Attorney General

PETER THOMAS WHITE

ERIC R, BIGGS

Special Assistant Attorneys General

N.M., Interstate Stream Commission

Bataan Memorial Building

Santa Fe, New Mexico 87503

Attorneys for New Mexico

| Tel Jn

aid Bass Sereceeserdsade=

a ~aiipceatertinatins desctneteetentasierdecteatinctgege destiny to

== = &

acai faeisatid (a

EEE tisad

en beageenaazens

ara

Eten

“See eaaaekeaeaneeaeeawtweeeeee ew ee @ @

i nanan i

faateonsauuceueauiery

a

aa

i

a

taaggeddedaeuccoueasioed (f

i

ia

isnt it

idas

geannnnuzentts

58

S|

état an

o4

$32

uel 1

thadacs

i

;

;

.

iT Fy 13

inaesedscdsaazce

tasgueveodouaudas

3

i

tis

cased]

pene

Pr rtsittiitity

72s, eee *

;

t

a

3

:

F}

]

aata if

?

Z

;

ia

5

t

r

r

3

LESCGROSER IE

>

£

Pe ae

7-3-3 ee em em me mm

aSeeeeSoensoesaesnsensaesasaeaeabauksa

| |

SUMAEEASEEEAREAEEGAUENEE 1

OL CORP Vie Ghee CODER i485) In EFFECT PR ee te) OO CCE 1 Oe.

Oe eee wr

“TEVOTSTACsd 20 PeQeETISe szeyaTe e2e SIP ITY SLON

“9° TRLE BOTAeAST® ROTeQ 203eR SepntoUr

O09" oer

STITTGdS sTOALeSey 230

quTeTd@wo

OOS*SLT <BOURTYO pure Sexe, JO S20

unbeq

ooe* rit STOAIOSSY 2320 BAZ osvel ey

SeyoroD aotTeq but QeuThr20

ooo" ezt 2@3en 7O ebe2098 enerxen

@ouemmoD esretes © TT Tds

oos*ett

STOAwESSY Tif

ot Aen

ot Ttady

@ ttady

e wren

*“STITZ ATOazesey SeYOUOD (BET “9 “G94

aiea

& Dear

a aa > |

es

we ¥N